U.S. Border Patrol can search your phone without probable cause

U.S. Border Patrol can search your phone without probable cause

U.S. border guards can search your phone: here are some details on how
Border agents can demand a password to open your phone, without probable cause
The Canadian Press Posted: Jan 18, 2018 11:51 PM ET Last Updated: Jan 19, 2018 2:31 PM ET

U.S. Customs and Border Protection issued a new directive that sets new limits on border agents accessing travellers' phones, establishing criteria for when they can demand passwords, conduct extensive searches, like downloading documents stored in the cloud, or uploading files into a storage drive for analysis.
U.S. Customs and Border Protection issued a new directive that sets new limits on border agents accessing travellers' phones, establishing criteria for when they can demand passwords, conduct extensive searches, like downloading documents stored in the cloud, or uploading files into a storage drive for analysis. (Sean Gallup/Getty Images)

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Border search of electronic devices | U.S. Customs, Jan. 4, 2018
Digital Privacy at the U.S. Border: Protecting the Data On Your Device | EFF
N.L. privacy commissioner: Travelling with mobile devices
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In one of several testy exchanges during a U.S. Senate hearing this week, the country's secretary of homeland security was pressed to explain a new policy that allows customs agents to examine the cellphones of travellers at the border.

"I want to make sure I understand this. I live an hour's drive from the Canadian border," said Vermont Sen. Patrick Leahy.

"If I go to Canada and visit some of my wife's relatives, and I come back ... they [can] say, 'We want your laptop and your phone and your pass code.' And I say, 'Well, do you have any reason?' They say, 'We don't need one.' Is that correct? They can do that?"

"Welcome to America," Leahy added sarcastically.

Public employees should delete personal info from phones before entering U.S., says N.L. privacy commissioner
Secretary Kirstjen Nielsen explained some of what the new policy does and doesn't do. Some key details:

—Background: Searches of phones were skyrocketing. Border agents inspected 30,200 phones and other devices last year — an increase of nearly 60 per cent from 2016. U.S. officials say it remains a minuscule percentage of overall travellers — 0.007 per cent, or roughly one per 13,000. The Department of Homeland Security says it's necessary to combat crimes like terrorism and child pornography.

—Customs agents have broad power: Immigration lawyer Henry Chang notes that one of his own colleagues once complained about a search, fearing a breach of attorney-client privilege: "The officer said, 'I don't care,"' Chang says. He said border guards can easily refuse someone entry: "There's ways they can mess with you," he said. "They can just declare you an immigration risk ... detain you, turn you away until you co-operate.... That's enough to scare people into co-operating."

Chipping America IV
Border agents inspected 30,200 phones and other devices last year — an increase of nearly 60 per cent from 2016. (Elaine Thompson/Associated Press)

—The new directive: On Jan. 4, U.S. Customs and Border Protection issued a new directive titled, Border Search of Electronic Devices. It actually set new limits on agents, establishing criteria for when they can conduct extensive searches, like downloading documents stored in the cloud, or uploading files into a storage drive for analysis.

—Your password: Agents can demand a password to open your phone, without probable cause, Nielsen confirmed during the hearing. However, Electronic Frontier Foundation (EFF) staff attorney Sophia Cope says the directive, which she calls confusing, also allows you to refuse to do so. That, of course, is not without its consequences she says in a statement to CBC News. Your device could be seized or detained. The border agent could delay your travel or even deny entry if you are not a U.S. citizen.

—The cloud: Here, there are new limits. Agents can't just start downloading old files from the cloud: "They can search the data that is apparent on the phone," Nielsen said. "They can't use the phone to access anything that might be stored remotely."

—Airplane mode: Officers are supposed to ask travellers to shut off their signal. That's to ensure remote files don't get downloaded accidentally. If warranted by security concerns, the Jan. 4 directive says officers can themselves perform the task of shutting off connectivity.

AIRLINES-WIFI/
To ensure remote files don't get downloaded accidentally, border agents should place devices in airplane mode, or turn off mobile data and Wi-Fi. Travellers may want to turn off their phones before border inspections. (Lucas Jackson/Reuters)

—Advanced search: An officer may judge it necessary for national security purposes, such as cases where the traveller is on a watch list, to connect a phone to a hard drive, then copy its contents for analysis. The directive says this requires the approval of a certain rank of supervisor.

—Detention: If they can't access a device, officers can detain it for a multi-day period. Detentions beyond five days must be approved by management. To detain a device, officers must fill out a form.

—Sensitive info: Lawyers can claim attorney-client privilege, citing which specific files are sensitive, and the officer must consult with customs legal counsel and the U.S. attorney's office to determine which files should be isolated from the regular search. Medical records, proprietary business information and journalists' notes must be handled in accordance with U.S. law, like privacy and trade-secrets legislation.

—Accountability: Travellers can be present during a search, though they can't ask to see the screen. Travellers must be notified of the purpose for a search. There are national-security exceptions on those rights. But travellers must be given information on where they can complain. Searches must be documented, with statistics kept and regularly published. Regular audits must keep track of whether agents are following rules.

APTOPIX Aviation Security
A traveller talks to a U.S. Customs and Border Protection official near the exit of the international arrivals terminal at Newark Liberty International Airport on Oct. 26, 2017, in Newark, N.J. (Julio Cortez/Associated Press)

—Destruction of records: Any copies of information held by U.S. customs must be destroyed, and any electronic device returned — unless there's a security threat and probable cause for an exception.

—So what to do: Chang offers three pieces of advice — before crossing the border, delete private material or transfer it to the cloud; at the border, turn on airplane mode yourself; and, finally, be prepared, unless you have some really compelling privacy reason, to just turn over your phone.

"You've got to choose your battles," he said.

Border agents cannot stop U.S. citizens from entering the country, even if they refuse to unlock their device or provide the password. However, EFF says, "agents may escalate the encounter if you refuse. For example, agents may seize your devices, ask you intrusive questions, search your bags more intensively, or increase by many hours the length of detention."

PIN pushing: how border officials can get into your phone
USA-IMMIGRATION/TRAVELBAN
U.S. Customs and Immigration officers use their own phones at the arrivals level at Los Angeles International Airport on June 29, 2017. (Mike Blake/Reuters)

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Re: U.S. Border Patrol can search your phone without probable cause

-- Hey Canadiana I saw this article a couple of weeks ago. Seems to contradict the fact that they can search your cell phone without reasonable suspicion.

U.S. Customs and Border Protection agents need to have "reasonable suspicion" to carry out "advanced" searches on electronic devices, including smartphones and tablets, that belong to individuals entering or exiting the country, the agency announced Friday.

The updated rules allow agents to continue to inspect information that's stored on a device, not in the cloud. But from now on, they can't copy that information or connect to an external device to analyze the contents, unless they have reasonable suspicion of criminal behavior.

"In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people," John Wagner, Deputy Executive Assistant Commissioner, Office of Field Operations, said in a statement.

"CBP's authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust," he added.

The new directive instructs agents to demonstrate reasonable suspicion of unlawful activity or show that there is a "national security concern" in order to conduct advanced searches.

CBP agents inspected 30,200 phones and other devices during the last fiscal year. That's a jump of more than 60 percent from 2016.

Officials stress that those searches represent just a tiny fraction of all arriving international travelers — .007 percent. And that they're necessary to combat terrorism, child pornography and other crimes.

The ACLU called that an improvement, but said the government shouldn't be able to search devices without a warrant.

In a statement, ACLU legislative counsel Neema Singh Guliani, said:

"It is positive that CBP's policy would at least require officers to have some level of suspicion before copying and using electronic methods to search a traveler's electronic device. However, this policy still falls far short of what the Constitution requires — a search warrant based on probable cause. ...

"Additionally, it fails to make clear that travelers should not be under any obligation to provide passcodes or other assistance to officers seeking to access their private information. Congress should continue to press CBP to improve its policy."

Re: U.S. Border Patrol can search your phone without probable cause

I am news junkie and happened to watch the Secretary of DHS in an open session on Tuesday. The subject came up and she said to Congress that an officer must have probable cause. Of course this area is gray, because visitors to the US do not exactly have the same rights as citizens. She explained that the phone or device is taken off the network and searched locally as in it can not review cloud documents.

Re: U.S. Border Patrol can search your phone without probable cause

I think this was the point of the whole article is that folks from either the southern U.S. Border meaning Mexico could have troubles at the border as well as the northern border meaning Canada.It probably depends on the mood of the officer,how busy they are,how you conduct yourself,etc.etc. any 1 of a 100 scenarios.The point of the article if I comprhended it correctly is that they could give you a hard time by not letting you in,searching you,making you wait,etc.unless you cooperate and hey if they think no 1 is the wiser from a different country they could probably search if you look suspicious.whether or not something is legal or not doesn't mean it won't happen although I'm not totally up on US law and if I was asked for my password I would cooperate and give it to them and not sue.I would just want to get through customs ASAP.Now I don't know what would happen if they searched a guy's phone,found something interesting,therefore searched his car because of it and found 50 lbs. of meth.I'M sure they would bust him but whether that holds up in court I have no clue but even if it didn't and guy wasn't popped they would be sure to be on that guy for anything suspicious.Maybe I just opened a can of worms with this article but it was meant to be food for thought.